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With just two weeks to go before a scheduled trial over whether Robin Thicke‘s “Blurred Lines” is a copyright infringement of Marvin Gaye‘s “Got to Give It Up,” the dispute has gone nuclear in the past 24 hours with a judge’s abrupt change of mind on a key issue and then an attempt to delay the trial for an appeal. In new papers, the Gaye family asserts the judge is misreading copyright law to the extent that it could have “drastic and devastating consequences for intellectual property” and “allow infringers to steal classic portions of the songs by Marvin Gaye, the Beatles, the Rolling Stones, Elvis Presley and every other iconic artist whose works were created before 1978.”
To briefly recap, Pharrell Williams and Thicke sued first in an attempt to win judicial relief that their monster hit wasn’t an infringement. Marvin Gaye’s children then brought cross-claims saying otherwise.
Last October, Williams and Thicke failed to win the case on summary judgment, but got the judge to issue a key ruling that because the “Got to Give It Up” sound recording wasn’t deposited with the Copyright Office in the 1970s, Gaye’s copyrights on the song were limited to elements expressed in the sheet music compositions. As a result, when it came time to determining what evidence a jury could hear, U.S. District Judge John Kronstadt precluded use of Gaye’s sound recording so that the jury wouldn’t be prejudiced by hearing stuff like Gaye’s voice, percussive choices and backup vocals.
That meant that prospective jurors won’t be hearing the original “Got to Give It Up” recording to compare to “Blurred Lines,” even though that’s what most people do when trying to figure out whether the two songs are similar. The lay observer’s opinion is important under what’s known as the “intrinsic test,” and the Gaye family argues that the composition and sound recording were created simultaneously and that the entire composition is embodied and expressed by the recording. Richard Busch, attorney for the Gayes, told The Hollywood Reporter earlier in the week that if the ruling stands, he does not believe that a fair trial can take place.
Then, on Wednesday afternoon, Judge Kronstadt came out with a remarkable new order — one that indicates that the judge took some time to think about this issue and came to a new conclusion.
While sticking with his belief that the introduction of the original Gaye recording at trial would unfairly prejudice Williams and Thicke, he said there was “merit” to the Gaye family’s contention “that it could be difficult for them to present their evidence of intrinsic similarity if the sound recordings are inadmissible in their entirety.”
Having the musicologists play the sheet music on keyboards — a proposal made the Williams side — might not do the trick. And so, the judge offered up his own suggestion: The Gaye family could create a new version of “Got to Give It Up,” one that’s stripped of non-protected elements. Marvin Gaye singing would still be in this new version and would be addressed with instructions to the jury. The judge even nodded to the fact that the Gaye family had created special mash-ups to prove their case.
“Two of the ‘mash-up’ tracks submitted by Defendants as potential trial exhibits, which consisted of Gaye’s vocals from ‘Got to Give It Up’ laid over instrumentals from ‘Blurred Lines,’ show that Defendants possess the technical capabilities to isolate protected from unprotected elements of the recordings of their compositions,” wrote the judge.
Despite the judge’s new inclination to allow at least some form of sound recording for the jury to hear, the Gaye family isn’t satisfied. Far from it with their lawyer telling the judge it “would be the only case in history” where something like that happened. They add that as “much as forty percent of the similarities found by the experts” have been excluded and that the order would require them to “re-tool their testimony and the demonstrative exhibits they have spent months developing.” On Thursday, an application for continuance of the trial and certification for an interlocutory appeal was filed.
According to the latest filing, “The law is clear that a plaintiff suing for copyright infringement under the 1909 Copyright Act need only produce a copyright registration identifying a work as published. As long as the work is properly registered, the registration covers not only the composition as reflected by the deposit copy, but also other versions of the composition that existed at the time of registration.”
The Gaye family faults the judge for taking the position that the version of the composition embodied on a sound recording isn’t protected. “Not only is there no support for this proposition in the case law, but adopting such a position would create dangerous and potentially devastating precedent to the owners of such intellectual property,” states the filing.
In a bid to get the judge to either reconsider once again or send the case up on appeal before a trial takes place, Busch argues that if the judge’s limiting position is adopted, clever infringers would be able to compare sheet music with works by artists such as Elvis Presley, and then legally steal the non-compositional elements. So sampling Presley’s voice? Maybe permissible. Busch also argues that it would have a “particularly harsh effect on individuals who may be great composers of songs, but do not read or write music” since those who didn’t have access to music education and couldn’t properly annotate their sheet music would get less legal protection.
“It would create a situation where the compositions in the recordings are derivative works incapable of copyright protection because, as pre-1978 works, the recordings could not be submitted as the musical compositions,” continues the filing. “That is not and cannot be the law. Instead, the Copyright Act required publication and registration, but once these statutory formalities are met, all versions of the composition fairly identified by the deposit copy were protected.”
It’s not often that judges certify interlocutory appeals — ones that come before claims are resolved at trial — but the Gaye family says it would be “prohibitively expensive” to have a second trial if one proceeds next month and then a successful post-trial appeal requires a do-over.
Stay tuned. The “Blurred Lines” case probably just gave everyone in the music industry a stake.
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